December 31, 2008

Blackwater Malpractice Suit Against Wiley Rein Dismissed Again

For Wiley Rein, perhaps the second time is the charm. On Dec. 29, Judge Jennifer Anderson of D.C. Superior Court dismissed the $30 million malpractice suit brought against the firm by Blackwater Security Consulting on summary judgment. She’s the second judge to throw out the case since it was filed last January.

“They have the right to ask more judges to look at it,” says Zuckerman Spaeder partner Mark Foster, who represents Wiley Rein in the matter. But if Blackwater’s lawyer, Barry Nace of Paulson & Nace, chooses to do so, Foster says, “I think he’d be wasting his time.” (Nace is on overseas travel and could not immediately be reached for comment.)

Blackwater alleged that Wiley botched its defense of the security contractor in a wrongful death case brought on behalf of four Blackwater guards killed in Iraq in 2004. Blackwater claimed the suit would have been dismissed if it had been heard in federal court, instead of in a North Carolina trial court. Blackwater said the Wiley lawyers failed to get a venue change because they didn’t invoke the federal officer removal statute, which grants federal jurisdiction to claims involving federal officers.

D.C. Superior Court Judge Judith Retchin first dismissed the case last June, saying Blackwater couldn’t prove damages. Blackwater filed a motion for reconsideration later that month, and the case was transferred to Anderson’s docket in July. In her order dismissing the case for the second time, Anderson noted that Blackwater could have proved it was owed legal costs associated with Wiley’s failed effort to transfer the case to federal court. However, Anderson ultimately concluded the federal officer removal statute would not have applied, meaning that damages were “consequently unavailable.”